As the House of Representatives takes the time it
needs to negotiate a bill to amend the Foreign Intelligence Surveillance Act
(FISA), the White House has launched a public assault on the legislative
body. The administration claims
that the House has endangered the country by letting the Protect America
Act (PAA) expire and should pass the bill already approved by the Senate. The Senate bill, however, is
unconstitutional and contains immunity for the telecommunications companies that
aided the president’s warrantless wiretapping program. The American Civil Liberties Union (ACLU) is urging the House to continue to stand
strong for the Constitution.

In a February 22nd letter to the House Permanent
Select Committee Chairman Silvestre Reyes, Attorney General Michael Mukasey and
Director of National Intelligence Mike McConnell made several misleading
claims. A corrective statement was
released by the Justice Department and Office of the Director of National
Intelligence regarding the cooperation of “private partners” the following
day. Here, the ACLU refutes some of the
administration’s arguments.

The Administration claims
that:

FISA's
requirements, unlike those of the Protect America Act and the bipartisan Senate
bill, impair our ability to collect information on foreign intelligence targets
located overseas.

…"because
of the hurdles under FISA's emergency authorization provisions and the
requirement to go to the FISA Court within 72 hours, our resource constraints
limit our use of emergency authorizations to certain high-priority circumstances
and cannot simply be employed for every foreign intelligence target” and that
"our intelligence professionals need to be able to obtain foreign intelligence
from foreign targets with speed and agility."

The Facts:

The NSA and CIA have unfettered authority
to wiretap at will outside the United States. FISA only regulates domestic
spying. No matter what, in an
emergency situation, the government can begin a wiretap immediately. Probable cause is a very low evidentiary
threshold, so if the government does not have enough of a justification to
obtain a judge’s approval (within 72 hours) there is probably not a very good
reason for them to believe there’s an emergency in the first place.

Let’s not forget that this push to amend
FISA started because the administration claimed that there was a simple “foreign
to foreign” fix needed. There is
substantial agreement that a FISA warrant should not be needed to intercept
communications between foreigners in foreign countries. Since July, the administration and DNI
have consistently asked for a mile under the guise of an inch. If the foreign to foreign fix is all
that is needed, it would easily pass with overwhelming bipartisan and bicameral
cooperation. The fact is the
administration wants Congress to legalize the warrantless domestic wiretapping
program that was disclosed over two years ago (to the outrage of many in
Congress, it should be noted) and to make sure the phone companies emerge from
their role in the program without a scratch.

The Administration claims
that:

The
FISA
Court requires a showing of probable cause before it
will authorize surveillance and satisfying the probable cause requirement will
result in unacceptable gaps and delays in monitoring communications of foreign
terrorists overseas.

…"it
makes no sense to require a showing of probable cause for surveillance of
overseas foreign targets who are not entitled to the Fourth Amendment
protections guaranteed by our Constitution."

The Facts:

Wrong
again. In an interview last year
with PBS’s “Frontline,” James Baker, head of the Justice Department's Office of Intelligence Policy
and Review, said the following on the ability of FISA applications to move
quickly:

Frontline: “So you're saying FISA can move very
rapidly.”

Baker: “Very rapidly. Extremely rapidly. I
just want to explain that the reason we do it that way is because we're under a
72-hour clock, and we don't want to start the clock running sooner than we need
to. It is challenging to finish these applications within 72 hours, so we don't
want to start the clock one minute sooner than we need to. It's just a very
practical decision. ...

“The point is, there's been no loss of foreign
intelligence information. That's the key thing. ... The American people have not
been put at any risk because of this process going on. The collection was not
ready until it was ready, and once it was ready, we went and got the attorney
general's approval. I'm not saying that we can always do it in one minute, but
we can do it pretty quick, and we know how to do it, and we've done it many,
many times .”

The Administration claims
that:

…“we
have lost intelligence information this past week as a direct result of the
uncertainty created by Congress' failure to act."

The
Intelligence Community and Department of Justice have worked over the past week
with our private partners – whose assistance is essential to our intelligence
collection efforts – to mitigate this problem caused by Congress' failure to
act, but we have nonetheless missed intelligence information that we could have
been collecting to protect the country.

The Facts:

The day after writing the letter to
Congress cited above, Mukasey and McConnell backtracked and admitted that
telecom cooperation with surveillance under existing orders is continuing. The fact that there is no FISA backlog,
as House Speaker Nancy Pelosi has said, is not challenged by the
administration. Security experts
Rand Beers, Richard Clarke, Don Kerrick, and Suzanne Spaulding wrote a letter to
Mukasey and McConnell chastising them for their misleading statements about a
loss of intelligence: “For new targets that are somehow not covered by
the existing authorizations, the FISA court can issue an order, which the
telecom companies are legally obliged to follow. Telecommunications
companies will continue to cooperate with lawful government requests,
particularly since FISA orders legally compel cooperation with the
government.”

Any delays or loss of intelligence rests
squarely on the shoulders of the president who refused to sign another extension
of the Protect America Act. The
administration can’t have it both ways.
It cannot flatly refuse to extend a law and then blame Congress for the
consequences.

The Administration claims
that:

…"[e]ven
prior to the expiration of the Protect America Act, we experienced significant
difficulties in working with the private sector because of the continued failure
to provide liability protection for such companies."

According
to a statement from the Department of Justice and the Office of the Director of
National Intelligence: "[A]lthough our private partners are cooperating for the
time being, they have expressed understandable misgivings about doing so in
light of the on-going uncertainty and have indicated that they may well
discontinue cooperation if the uncertainty persists…Even with the cooperation of these private
partners under existing directives, our ability to gather information concerning
the intentions and planning of terrorists and other foreign intelligence targets
will continue to degrade because we have lost tools provided by the Protect
America Act that enable us to adjust to changing circumstances."

The Facts:

If the government is having trouble
compelling its “private partners” to help in its intelligence gathering, it is
most likely because the government is asking them to do something that is not
authorized under the law. These
companies would have no choice but to comply with a legal directive. Any lack of cooperation or “loss of
tools” the administration is bemoaning is its own fault. The fact is plain and simple: a warrant
compels cooperation and provides immunity.
If the government can’t come up with the probable cause it needs to
satisfy the FISA court, then these “private partners” are probably correct to
not go ahead with the administration’s wink and nod yet
again.